Pool v. Menefee

• Decision Date: 21 April 1921
• Docket Number: 2 Div. 757,757A
• Parties: POOL v. MENEFEE. THOMPSON v. SAME.
• Court: Alabama Supreme Court

88 So. 654

205 Ala. 531

POOL v. MENEFEE.

THOMPSON v. SAME.

2 Div. 757, 757A

Supreme Court of Alabama

April 21, 1921

Appeal from Circuit Court, Marengo County; R.I. Jones, Judge.

Bill by A.B. Menefee against B.F. Pool and another to rescind certain contracts and to cancel the evidences thereof. From a decree overruling demurrers to the bill, respondents separately appeal. Affirmed.

William Cunninghame, of Linden, for appellant Pool.

I.I Canterbury, of Linden, for appellant Thompson.

Lavender & Thompson, of Centerville, and Henry McDaniel, of Demopolis for appellee.

McCLELLAN J.

The appellee, Menefee, filed this bill (later amended) against the appellants, B.F. Pool and B.A. Thompson. The appeal is from a decree overruling the separate demurrers of the respondents, appellants, to the bill as a whole and to parts thereof. The relief sought is rescission of contract and cancellation of written evidences of it, one for the sale of real property in this state, and the other for the sale of certain personal property, the agreed value of which was to be satisfied with other properties, and also to cancel both the deed conveying the real estate in consonance with the first-mentioned contract and the bill of sale effecting the transfer of the personal property described in the last-mentioned contract.

The ground upon which the relief sought through the amended bill is fraud or fraudulent misrepresentation practiced upon the complainant by the combining fraudulent efforts of the respondents to induce and to effect the consummation of the single transaction out of which these four (as it were) contracts arose. The amended bill's allegations in this regard averted any sound objection that the bill was rendered multifarious by joining therein the two matters, viz. the sale of the land and the sale of the personalty. The original contracts bear the same date, the personalty being located it appears, on the land so involved; and the deed to the land and the bill of sale of the personalty were executed, respectively, on the next day (October 23, 1918), and on October 28, 1918. The unity of the initial transactions is sufficiently averred in the bill to preclude its being multifarious. Thompson, grantee of Pool, charged as the amended bill does charge him, was a proper, if not a necessary, party. The failure to observe rule 8 of chancery practice (Civil Code, p. 1531), in respect of numbering the paragraphs of the bill, is not a subject of demurrer, the omission being of a required and very desirable formality, not related, however, to the substance of the bill. McKenzie v. Baldridge, 49 Ala. 564, and U.S. Fidelity Co. v. Pittman, 183 Ala. 602, 606, 62 So. 784, afford satisfactory analogies, inviting the conclusion stated. Grubbs v. Hawes, 173 Ala. 383, 56 So. 227, affirms nothing to the contrary.

We will state, somewhat summarily, the allegations of the bill, etc.

In October, 1918, the complainant (appellee) was the owner of the plantation described in the bill and exhibits and of personalty thereon, also described in the bill and exhibits. It is averred in the bill that on September 30, 1918, complainant was taken seriously ill in Nashville, Tenn., and endured a temperature of from 100 to 104 degrees until about October 15, 1918; that "within a few days thereafter respondents, knowing complainant's weakened mental condition and well knowing that complainant was not in a normal mental condition, procured his signature" to the contracts described above; and that "within a day or two thereafter the said contracts were consummated" by the complainant's execution of the deed and bill of sale mentioned above. It is further averred that at the time all of these instruments were executed by complainant he was in "a very greatly weakened physical and mental condition, and was not mentally able to realize and appreciate the value of property he was conveying, nor to judge the value of the property given him as a pretended consideration for said property, and this the respondent well knew and purposed to take advantage of complainant's condition to obtain his certain property for a grossly inadequate consideration. ***" The particular fraudulent acts or representations charged in the bill are, in substance, as follows: (a) That the respondents "willfully and falsely represented" that 400 acres of land in Marengo county would be conveyed to complainant as a part of the consideration, whereas they conveyed only 320 acres and are unable or have failed to convey the balance, viz. 80 acres; (b) that respondents willfully and falsely represented the value of this land (the 400 acres) to be $12,000, whereas it was worth less than $4,000, and that respondents knew complainant had never seen this land and was ignorant of its value, and that complainant relied on and accepted as true "said false statements of the respondent Pool relative to the value of said land"; (c) that Murphreesboro, Tenn., real estate was conveyed to complainant as a part of the consideration for his plantation, that the respondents willfully and falsely represented to him that this property was "renting for some $90 to $100 per month, and that it was worth more than $16,000, with an incumbrance of $3,500," whereas, in fact, it was "not renting for any such sum," and is worth "not more than $3,000," that complainant was ignorant with respect to these representations, that these respondents knew of his ignorance in the premises, and that he "was wholly relying upon their statements relative to the same"; and (d) that the representations and facts with reference to the 86 lots situated in Tennessee mentioned in the contract for the sale of the personal property (exhibit B) are as follows:

"Complainant further avers that as a part of the consideration due him for said property was 86 lots mentioned in the contract for the sale of the personal property. The said lots were at the time the property of complainant, and the said respondent Pool had no right, title, or interest in same, but falsely pretended to complainant that they belonged to him, the said Pool, for and on account of an alleged claim of commissions due said Pool on another and different transaction. That in truth and fact complainant was

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